Miller v. Bonta, Case No.: 19-cv-1537-BEN (JLB)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtHON. ROGER T. BENITEZ United States District Judge
PartiesJAMES MILLER, et al., Plaintiffs, v. ROB BONTA, in his official capacity as Attorney General of the State of California, et al., Defendants.
Docket NumberCase No.: 19-cv-1537-BEN (JLB)
Decision Date04 June 2021

JAMES MILLER, et al., Plaintiffs,
ROB BONTA, in his official capacity as Attorney General of the State of
California, et al., Defendants.

Case No.: 19-cv-1537-BEN (JLB)


June 4, 2021



Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Plaintiffs challenge a net of interlocking statutes which impose strict criminal restrictions on firearms that fall under California's complex definition of the ignominious "assault weapon." Hearings on a preliminary injunction were consolidated with a trial on the merits pursuant to F.R.C.P. Rule 65(a)(2). Having considered the evidence, the Court

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issues these findings of fact and conclusions of law,1 finds for the Plaintiffs, and enters Judgment accordingly.

The Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S., at 635. The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes. At the same time, "the Second Amendment confers an individual right to keep and bear arms . . . that 'have some reasonable relationship to the preservation or efficiency of a well regulated militia.'" Id. at 622. And although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry "any weapon whatsoever in any manner whatsoever and for whatever purpose," Heller, 554 U.S., at 626, lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts. Unfortunately, Heller's acknowledgement of exceptions for gun laws at the extreme is in danger of swallowing Heller's rule for the average case.

This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned "assault weapons" are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed "assault weapons" are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes.

One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this

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hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle - not necessarily an AR-15.2 A Californian is three times more likely to be murdered by an attacker's bare hands, fists, or feet, than by his rifle.3 In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle.4 The same pattern can be observed across the nation.

A. Pre-Heller Origin of the Assault Weapons Control Act ("AWCA")

It is clear today, in the year 2021, that individuals have a right to keep and possess dangerous common arms."5 But California's Assault Weapons Control Act ("AWCA") was enacted in the year 1989. In 1989, the California Legislature was concerned that an assault weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings." See Cal. Penal Code § 30505(a). AWCA then banned assault weapons by specific makes and models. Cal. Penal Code § 30510.

AWCA was a policy choice unencumbered by constitutional considerations. The California Legislature weighed only the firearm's value for sports and recreation against the relative dangerousness of the weapon and the danger of it being misused by criminals.

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It was a different time in legal history.

B. Pre-Heller Second Amendment Jurisprudence

In 1989, most judicial thinking about the Second Amendment was incorrect. Prior to 2008, lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states. See e.g., United States v. Hancock, 231 F.3d 557, 565-66 (9th Cir. 2000) ("[T]his court has concluded that 'the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.'") (citation omitted).6 When the features-based definition was added for the year 2000, a citizen challenging AWCA in the Ninth Circuit was still (incorrectly) regarded as lacking basic Article III standing.7 Judicial recognition of an individual right to keep and bear arms to be respected by the states would come later with the Heller decision in 2008 and the McDonald decision in 2010. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010) ("[I]n Heller, we held that individual self-defense is 'the central component' of the Second Amendment right.").8

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In the year 1989, the California Legislature was not concerned with maintaining room for a citizen's constitutional right to have a common firearm of one's choosing to defend hearth and home. In making its policy choice, the California Legislature neither mentioned a modern rifle as a means of self-defense, nor did the core Second Amendment right appear to have been any part of its consideration.9 The formal legislative findings say nothing about self-defense. See § 30505(a). The balance was simply about criminal use, on the one hand, versus sporting or recreational activities, on the other hand. In the pre-Heller jurisprudential milieu, the pure policy choice made sense.

C. Amending AWCA Using a Prohibited-Features Approach

On January 1, 2000, Senate Bill 23 went into effect adding to AWCA the features-based definition of "assault weapons" (now codified at California Penal Code § 30515(a)). At this juncture, it is not clear why § 30515(a) was enacted, as there is no legislative history in evidence. The federal assault weapon ban was already in place.

It may have been the fact that manufacturers began producing new firearms with similarities to listed rifles to circumvent the ban.10 Important for today's constitutional evaluation is the fact that, once again, the California Legislature did not consider its citizens' federal constitutional right to keep a weapon for home defense. As Heller says, "[t]he very enumeration of the [constitutional] right takes out of the hands of government

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. . . the power to decide on a case-by-case basis whether the right is really worth insisting upon." 554 U.S., at 635 (emphasis in original).

Concerning AWCA's prohibited-features amendment, the Attorney General has not identified any relevant legislative history or legislative findings about the societal dangers of pistol grips, flash hiders, telescoping stocks, flare launchers or barrel shrouds. The State's legislative information website lists several committee reports leading up to the signing of Senate Bill 23 by California Governor Gray Davis on July 19, 1999. See But there are no studies of criminal gun usage recounted. There are no assault weapon experiences of other states or cities recited. There are no public hearings described. There is one indication, however: Senate Bill 23 was said to be similar to Assembly Bill 2560, which was passed the previous year, but vetoed by California Governor Pete Wilson. Governor Wilson issued a statement with his veto criticizing AWCA's prohibited-features approach and offered this analogy: "If this bill's focus were high speed sports cars, it would first declare them 'chariots of death' and then criminalize possession of Ramblers equipped with racing stripes and wire wheels."11

After AWCA was amended times changed. The federal ban expired in 2004. Heller was decided in 2008. McDonald was decided in 2010. Nevertheless, California continues to restrict "assault weapons" under § 30515(a). See Cal. Pen. Code §§ 30600(a), 30605(a).12 Section 30515(a)(1) through (8), the prohibited-features definition

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of an "assault weapon," is the statute (along with its interlocking counterparts) which, today, Plaintiffs challenge as unconstitutional.13

D. Assault Weapons Defined

Under § 30515(a), a rifle is labeled an "assault weapon" if it is one of three principal types. The first type is a semiautomatic centerfire14 rifle that does not have a fixed magazine but has one of the following prohibiting features: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip. The second type is a semiautomatic centerfire rifle that has a fixed15 magazine able to hold more than 10 rounds. The third type is a semiautomatic centerfire rifle that has an

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overall length of less than 30 inches. Cal. Penal Code § 30515(a)(1)-(3).16

As an aside, the "assault weapon" epithet is a bit of a misnomer.17 These prohibited guns, like all guns, are dangerous weapons. However, these prohibited guns, like all guns, can be used for ill or for...

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